Intimate Images Offence Explained by Leading Toronto Criminal Lawyer

Modern technology has led to new and unforeseen changes in the way people communicate and express themselves. Smart-phones, computers and the internet give almost everyone the ability to instantly connect and share information with countless other individuals.

Unfortunately, some people use the amazing potential of the internet to hurt others. This behaviour is often labeled as “cyberbullying” and includes a range of conduct meant to harass, threaten, bully or shame others. One of the most widely talked-about types of cyberbullying involves posting or sharing sexually-explicit photographs of other people.

In the past, the justice system had limited ability to prosecute people who distributed private, sexually explicit images or videos of other people without their consent. Criminal Code offences relating to child pornography were applicable where the subject of an image was under eighteen years old at the time the image was made. The offence of voyeurism could potentially be relied on if the images were surreptitiously recorded without the consent of the person in the image. However, the Criminal Code offered little protection when the images were lawfully obtained by the person distributing them but were posted without the consent of the images’ subjects.

In 2014, the Canadian government enacted the Protecting Canadians from Online Crime Act. This act introduced a new offence of non-consensual distribution of intimate images.

While this offence came into force in March of 2015, many people still do not realize that it is a crime to distribute or publish intimate images without the consent of the person/people depicted in those images.

The offence of non-consensual distribution of intimate images is a hybrid offence, meaning that it can be prosecuted summarily or by indictment. If prosecuted by indictment the offence carries a maximum sentence of five years imprisonment.

This offence is made out where a person publishes, distributes, transmits, sells, makes available or advertises an “intimate image” without consent of the person depicted in the image. To be guilty, the accused person must either know or be reckless to the fact that the person depicted in the image did not consent to its distribution.

An “intimate image” is defined in the Criminal Code. An “image” includes a photo, film or video recording (physical or digital). The image must be intimate in nature, meaning that the person depicted is either naked, exposing their genital, anal area or breasts, or is engaged in explicit sexual activity.

The image must have been recorded in circumstances that gave rise to a “reasonable expectation of privacy”. The image only counts as an intimate image if the person depicted retains a reasonable expectation of privacy at the time the accused published it.

The offence contains a specific defence, in that a person cannot be convicted if the publication of the image serves the public good and “does not extend beyond what serves the public good”. In considering whether the conduct serves the public good, an accused’s motives are not taken into account. There have been few reported cases involving this offence, so the exact application and limits of the public good defence remain to be seen.

Depending on the circumstances of the publication or distribution, an accused person may be able to defend the charge on the basis that the publication was accidental or inadvertent (given the requirement that the publication, etc. has to be done “knowingly”).

It is important to note that while the offence of non-consensual distribution of intimate images was introduced in the Protecting Canadians from Online Crime Act, the offence is not limited to online publication. Non-digital forms of publication, distribution, etc. would still be captured by this offence.